Citation Nr: 0836032
Decision Date: 10/21/08 Archive Date: 10/27/08
DOCKET NO. 05-38 787 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Medical and Regional
Office (RO) Center in Wichita, Kansas
THE ISSUES
Entitlement to an initial evaluation in excess of 20 percent
disabling for degeneration of the right shoulder with
surgical hardware.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Cory L. Carlyle, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1962 to
October 1966, March 1967 to March 1969, and July 1971 to June
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2005 rating decision of the RO
in Wichita, Kansas, which assigned an initial 20 percent
disability rating for degeneration of the right shoulder with
surgical hardware.
FINDINGS OF FACT
1. The veteran is right-hand-dominant.
2. Since his date of claim, the veteran's service-connected
degeneration of the right shoulder with surgical hardware is
not productive of recurrent dislocations. He has guarding on
internal rotation but does not have frequent episodes of
guarding of all arm movements. His right shoulder is
painful; his range of motion is above shoulder level; he has
additional limitation of motion of rotation with repetition
due to pain; the right shoulder is stable without laxity; and
there is no fibrous union, no nonunion, no loss of humeral
head, and no ankylosis.
CONCLUSION OF LAW
The criteria for an initial evaluation higher than 20 percent
for degeneration of the right shoulder with surgical hardware
are not met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R.
§ 4.71a, Diagnostic Code (DC) 5202 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder, and has an obligation to provide
reasons and bases supporting this decision. See Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis
below focuses on the most salient and relevant evidence and
on what this evidence shows, or fails to show, on the claims.
The veteran must not assume that the Board has overlooked
pieces of evidence that are not explicitly discussed herein.
See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the claimant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
I. Veterans Claims Assistance Act (VCAA)
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C. § 5103(a) (West 2002); 38
C.F.R. § 3.159(b) (2007). The United States Court of Appeals
for Veterans Claims (Court) held that VA must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The present claim arises from an initially-granted claim of
service connection. The Court observed that a claim of
entitlement to service connection consists of five elements,
of which notice must be provided prior to the initial
adjudication: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date. See Dingess v. Nicholson, 19 Vet. App. 473,
490 (2006); see also 38 U.S.C. § 5103(a). Compliance with
the first Quartuccio element requires notice of these five
elements in initial ratings cases. See Dunlap v. Nicholson,
21 Vet. App. 112 (2007).
Prior to initial adjudication of the veteran's claim, a
letter dated in December 2004 satisfied the first three duty
to notify provisions. 38 U.S.C. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio, 16 Vet. App. at 187.
Here, the veteran is challenging the initial evaluation
assigned following the grant of service connection. In
Dingess, and more recently in Goodwin v. Peake, the Court
held that in cases-like this one-where service connection
has been granted and an initial disability rating and
effective date have been assigned, the typical service-
connection claim has been more than substantiated, it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled. Goodwin, 22 Vet. App.
128, 136 (2008); Dingess, 19 Vet. App. at 484. Further, the
veteran has neither alleged nor demonstrated that he has been
prejudiced by defective VCAA notice. Goodwin, 22 Vet. App.
at 136; Dunlap, 21 Vet. App. at 119. Regarding the
disability rating, VA requested and obtained all information
from the veteran to support his claim and granted service
connection. There is no indication any other evidence exists
to support a higher disability rating. Thus, the VCAA's
purpose has been effected and any error is non-prejudicial.
The Board also concludes VA has satisfied its duty to assist.
See 38 U.S.C. § 5103A. The veteran's service medical records
and VA medical records are in the file. The veteran provided
additional private medical records, which are associated with
the file. The Board finds that VA has obtained all records
the veteran has identified.
The duty to assist includes, when appropriate, the duty to
conduct a thorough and contemporaneous examination of the
veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In
addition, where the evidence of record does not reflect the
current state of the veteran's disability, a VA examination
must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589
(1991); 38 C.F.R. § 3.327(a) (2007).
The RO provided the veteran an appropriate VA examination in
March 2005. There is no objective evidence indicating that
there has been a material change in the severity of the
veteran's service-connected right shoulder degeneration with
surgical hardware since he was last examined. See 38 C.F.R.
§ 3.327(a). It is the objective symptoms of the disability
that guide VA's assignment of a rating. All these factors
were completely addressed in the VA examination and remain
correct evaluations of the veteran's disability. The duty to
assist does not require that a claim be remanded solely
because of the passage of time since an otherwise adequate VA
examination was conducted. VAOPGCPREC 11-95, summary
available at 60 Fed. Reg. 43186-01 (1995). The March 2005
examination is an adequate base upon which the July 2005
rating decision stands. Both pre- and post-VA examination
treatment records are consistent with the examination and
thus, the Board finds that no further action is needed.
II. Increased Rating
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his or her ability to function under the
ordinary conditions of daily life, including employment, by
comparing his or her symptomatology with the criteria set
forth in the Schedule for Rating Disabilities. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity
resulting from such diseases and injuries and the residual
conditions in civilian occupations. Generally, the degrees
of disabilities specified are considered adequate to
compensate for considerable loss of working time from
exacerbation or illness proportionate to the severity of the
several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. §
4.1 (2007). Separate diagnostic codes identify the various
disabilities and the criteria for specific ratings. If two
disability evaluations are potentially applicable, the higher
evaluation will be assigned to the disability picture that
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2007). Any reasonable doubt regarding the
degree of disability will be resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2007).
The Board reviews the veteran's entire history when making a
disability determination. See 38 C.F.R. § 4.1. When the
veteran has timely appealed the rating initially assigned for
the service-connected disability within one year of the
notice of the establishment of service connection for it, VA
must consider whether the veteran is entitled to "staged"
ratings to compensate him for times since filing his claim
when his disability may have been more severe than at other
times during the course of his appeal. See Hart v.
Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West,
12 Vet. App. 119 (1999).
The veteran's right shoulder disability is currently rated as
20 percent disabling under DC 5202, other impairment of the
humerus. See 38 C.F.R. § 4.71a. The veteran is right-
handed, and this disability affects his major upper
extremity. See 38 C.F.R. § 4.69. As the RO rated the
veteran's disability at 20 percent, the Board only considers
ratings at or above that percentage.
The rating criteria for other impairment of the humerus are
as follows: 20 percent rating when there is recurrent
dislocation at the scapulohumeral joint with infrequent
episodes and guarding of movement only at the shoulder level;
30 rating percent when there is recurrent dislocation at the
scapulohumeral joint with frequent episodes and guarding of
all arm movements; 50 percent rating for a fibrous union of
the humerus; 60 percent rating for a nonunion of the humerus
(false flail joint); and 80 percent rating for loss of head
of the humerus (flail shoulder). 38 C.F.R. § 4.71a, DC 5202.
Under DC 5202, 80 percent is the highest disability rating
possible. See id.
The veteran underwent a VA examination in March 2005. The VA
examination states the veteran does not experience recurrent
shoulder dislocations and only on the internal rotation does
it mention guarded movement or additional limitation of
motion on repetitive use. The internal rotation is one of
four components of the physical examination to determine the
severity of musculoskeletal disability of the shoulder. The
others are flexion, abduction, and external rotation. See 38
C.F.R. § 4.71, Plate I; Id. § 4.71a, DC 5202.
There was no fibrous union, no nonunion, and no loss of
humeral head. The VA examination notes that the veteran's
right shoulder is "stable without laxity on exam and level
with left shoulder." The x-ray study associated with the VA
examination reflects "marked and advanced degenerative
changes with joint space narrowing, sclerotic border,
osteophyte formation and spur formation," along with the
orthopedic screw. None of this shows recurrent dislocation
at the scapulohumeral joint with frequent episodes and
guarding of all arm movements, which would support a higher
rating for the veteran's disability. See 38 C.F.R. § 4.71a,
DC 5202. The present rating at 20 percent disability under
DC 5202 is the highest rating appropriate to the facts of
this case.
The Board also considers whether a higher initial evaluation
is warranted under other DCs, such as DC 5010, pertaining to
traumatic arthritis. Traumatic arthritis, confirmed by x-ray
findings, is rated as degenerative arthritis. 38 C.F.R. §
4.71(a), Diagnostic Code 5010. Under Diagnostic Code 5003,
degenerative arthritis, when established by x-ray findings,
will be rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. Normal ROM of the shoulder is flexion to 180
degrees, abduction to 180 degrees, external rotation to 90
degrees, and internal rotation to 90 degrees. 38 C.F.R. §
4.71, Plate I. On flexion, the veteran's active ROM was 0 to
120 degrees with pain beginning at 66 degrees and ending at
84 degrees. Passive ROM was 0 to 140 degrees with pain
beginning at 104 degrees and ending at 90 degrees. There was
no additional limitation of motion on repetitive use. On
abduction, the veteran's active ROM and passive ROM was 0 to
160 degrees with no report of pain. There was no additional
limitation of motion on repetitive use. On external
rotation, the veteran's active ROM was 0 to 35 degrees with
pain beginning at 30 degrees and ending at 0 degrees.
Passive ROM was 0 to 40 degrees with pain beginning and
ending at 30 degrees. There was no additional limitation of
motion on repetitive use. On internal rotation, the active
ROM was 0 to 75 degrees with pain beginning and ending at 65
degrees. Passive ROM was 0 to 84 degrees with pain beginning
and ending at 65 degrees. There was additional limitation of
motion on repetitive use with pain as the most responsible
factor. The veteran's ROM does not qualify him for an
increased rating under DC 5201 as he is mobile above shoulder
level. See 38 C.F.R. § 4.71a, DC 5201. Only a ROM below the
shoulder level would qualify him for increased compensation
under DC 5201.
When an evaluation of a disability is based upon limitation
of motion, the Board must also consider, in conjunction with
the otherwise applicable DC, any additional functional loss
the veteran may have sustained by virtue of other factors as
described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8
Vet. App. 202, 206 (1995). Such factors include more or less
movement than normal, weakened movement, excess fatigability,
incoordination, pain on movement, swelling, and deformity or
atrophy from disuse. 38 C.F.R. § 4.45. A finding of
functional loss due to pain must be supported by adequate
pathology and evidenced by the visible behavior of the
veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App.
80, 85 (1997).
The March 2005 VA examination, along with other evidence,
reveals that the veteran experiences "significant effects"
on his occupation, has problems lifting and carrying, lack of
stamina, and decreased strength and pain in his upper
extremity. The veteran displayed pain on forward flexion,
shoulder abduction, and external rotation, but there was no
additional limitation due to weakness or following repetitive
motion. The veteran did, however, experience additional
limitation of motion with repetition due to pain on the
internal rotation. Even with the consideration of pain, the
veteran's right shoulder motion was not limited to midway
between the side and shoulder level, which is required for a
30 percent rating. 38 C.F.R. § 4.71, DC 5201.
DC 5200 does not apply, as the VA examination states there
was no shoulder ankylosis. See 38 C.F.R. § 4.71a, DC 5200
(ankylosis of scapulohumeral articulation). There is
evidence of scapular impairment, appearing in this case as a
"single bone screw near the glenoid of the right scapula,"
but there is no dislocation, nonunion, or malunion of the
clavicle or scapula to warrant application of DC 5203. The
veteran is properly rated as 20 percent disabled under DC
5202. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of
diagnostic code should be upheld if supported by explanation
and evidence).
Reviewing the evidence, the Board finds that the overall
disability picture for the veteran's right shoulder
disability does not more closely approximate a 30 percent
rating. See 38 C.F.R. § 4.7. The Board notes that the facts
of this case raise the issue of an extra-schedular evaluation
under 38 C.F.R. § 3.321(b). The VA examination notes
interference with the veteran's employment, but the veteran
states he can hide his condition for employment purposes and
has not reported frequent hospitalization. See Barringer v.
Peake, No. 06-3088, 2008 WL 4210789 (Vet. App. Sept. 16,
2008). In addition, the veteran's shoulder does not
dislocate with any frequency. Marked interference with
employment and frequent hospitalization could qualify the
veteran for an extra-schedular rating, but the evidence in
this case does not support referral to the Compensation and
Pension Service for an extraschedular rating. See Thun v.
Peake, 22 Vet. App. 111, 115 (2008); VAOGCPREC 6-96, summary
available at 61 Fed. Reg. 66748-02, 66749 (1996).
Furthermore, the Board has considered "staging" the periods
of the veteran's disability but finds assigning different
ratings to any periods of the veteran's disability to be
inappropriate in this case. See Hart, 21 Vet. App. at 510.
The preponderance of the evidence is against this claim and
thus, the benefit-of-the-doubt rule does not apply in this
case. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
ORDER
Entitlement to an initial evaluation in excess of 20 percent
disabling for degeneration of the right shoulder with
surgical hardware is denied.
____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs